A Nation and her ailing President – by Frank Ofili

On 7th May 2017, President Muhammadu Buhari left Nigeria for the UK to avail medical treatment for his failing health. This was sequel to an earlier such trip on 19th January. In the first trip, he ended up spending 45 days instead of the 10 days he anticipated. As I write it is exactly 85 days since he left the country a second time this year and not much news has been heard about his condition, whether he is improving or not. All we have is the assurance that the unthinkable has not happened, regardless of whatever Ayo Fayose and his friend Femi Fani Kayode a.k.a FFK may say to the contrary.

The assurance has been re-enforced by the recent visit of some APC and PDP governors and chieftains to the ailing President in what I consider as a mockery of governance, Buhari and the country. I hear the leadership of our National Assembly is also making moves to embark on their own mock visit. Even CNN’s Fareed Zakaria has joined the fray in mockery of Nigeria and her President.

While the impending mock visit of the National Assembly leadership can be situated in the context of the politics of 2019, CNN’s Zakaria is hardly to blame for his mockery of the country. President Buhari’s media aides, Garba Shehu and Femi Adesina, and Information and Culture Minister, Lai Mohammed, have not been forthcoming with adequate and timely information to pacify Nigerians and the international community. Typically, neither the President’s media team, Lai Mohammed nor our Ambassador to the US has found it necessary to respond to CNN’s mockery of Nigeria via Zakaria.

But I digress. There have been questions – some of them sincere while others are borne out of mischief – as to how long the President can be away from the country. Some, like Fayose and FFK, have openly declared that the President is incapacitated and on life-support, and may not return to the country a complete man, or be able to perform his duties as President if and when he returns. They are thus urging the National Assembly to remove him from office.

One fellow who knows me as an unrepentant Buhari supporter has pointedly called me out in a Facebook post to speak up and tell the country how long the President can be away. In a way, these are legitimate concerns.

However, one thing these critics cannot deny is that Mr. President fulfilled all constitutional requirements in relation to a situation like this; there is therefore no vacuum whatsoever. Section 145 (1) of our operative manual, the 1999 Constitution, requires the President to communicate to the National Assembly the notice of his intention to go on medical treatment, annual leave or some other trip warranting his absence from the country. This, Buhari did, in addition to handing over power to his vice, Prof Yemi Osinbajo. One must admit that Osinbajo has been doing a great job as Acting President.

As far as can be determined, there is no constitutional provision with regard to how long the President can be away from the country after fulfilling Section 145 (1) of the Constitution. In the absence of such a provision, there are limited options available. The first option is to declare him incapacitated and remove him from office, but then there are clear constitutional provisions which must be fulfilled before a President can be declared incapacitated. Those provisions have neither been fulfilled nor is there proof that he is indeed incapacitated. So, scratch that.

Twice in less than 10 years the country is having to contend with the embarrassing situation of having an absentee President.

The second option is to initiate impeachment proceedings against him. Again, there are clear constitutional stipulations that must be followed before a President can be impeached. The process for impeaching a President is contained in Section 143 of the 1999 Constitution. Step 1 of that process states that there must be a notice in writing alleging gross misconduct on the part of the President. This notice must be signed by not less than one-third of the members of the National Assembly (both the Senate and House of Representatives). For the sake of clarity, gross misconduct is defined by the Constitution as ‘…a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.’ Again, there is nothing to suggest that Mr. President is in “gross violation” of the Constitution.

In the absence of any constitutional breach on the part of the President vis-a-viz a provision as to the length of time he can stay away from the country on medical leave, we can only seek recourse to what is morally expedient to do in the circumstance, in the interest of the country and Mr. President himself. Hence the calls in some quarters for him to resign his position as President of the country.

But resigning his position in the prevailing circumstance is in the realm of discretion – to do or not to do – and not legal/constitutional requirement. If he chooses not to resign, he would have committed no illegality. On the other hand, if he chooses to resign, he would join the club of great African leaders who left power willingly. The late Nelson Mandela of South Africa is the undisputed leader of that exclusive club.

Still, the logjam remains insofar as Buhari has neither returned hale and hearty nor resigned his position as President of the Country. What then is the way forward?

The nearest to any legal prescription as to how long the President can be away on medical leave is provided by a long-established labour practice in Nigeria which requires an employer to retain a temporarily incapacitated employee for a minimum of 6 months before deciding to dispense with his/her services on medical ground. But Buhari is not like the regular employee even though we the people may be termed as his regular employer.

For purposes of clarity, the aforementioned labour practice requires an employer to pay 6 months sick benefits to an employee who is temporarily incapacitated due to ill health as follows, subject of course to satisfactory documentary evidence that the employee is actually hospitalized:

1. Full salary for the first 3 months of being incapacitated/hospitalized,

2. Half salary for second 3 months of being incapacitated/hospitalized

Only after these six months of catering for an incapacitated/hospitalized employee’s medical bills, and paying him/her as stated, may their appointment be considered for termination on health ground, subject of course to medical advice from a qualified medical practitioner.

It must be stated here however that for an employee to be eligible for this benefit, they must have been in continuous employment for at least 6 months and their appointment must have been duly confirmed. It should be further noted that an employer may exercise discretion to go beyond this minimum. This benefit is also without prejudice to the normal 12 days paid sick leave in a calendar year which every employee in regular employment is entitled to.

the National Assembly must now take a look at the possibility of amending our Constitution in a manner that would envisage this kind of situation, and thus, fix a time limit the President or Governor can be away from the country.

Now, putting aside the fact that President Buhari is not a civil servant, the question to ask is, has he breached even this minimum regulation? The answer, of course, is a resounding NO. Nigerians, then, are left with limited option than to exercise more patience and wish our President full and speedy recovery, at least for 6 months.

I must add however that if the President does not return to the country hale and hearty after six months of being away on medical leave, even I would join the call for him to step down. Until then, we keep watch.

But what are the lessons to learn from the President’s sick leave?

The first is that the National Assembly must now take a look at the possibility of amending our Constitution in a manner that would envisage this kind of situation, and thus, fix a time limit the President or Governor can be away from the country. Twice in less than 10 years the country is having to contend with the embarrassing situation of having an absentee President. The same situation played out with regards to former Enugu and Taraba state Governors Sullivan Chime and Danbaba Suntai respectively. Something must now be done.

The second lesson is that government must now begin to take decisive steps towards revamping our healthcare system to avoid any future embarrassing situation as this. The third and final lesson is that beyond the mantra of Change, the APC government must begin now to put things on ground to rebuild the confidence of Nigerians and regain their trust. It is disheartening to hear that Mr. President was wary of submitting him to Nigerian doctors for treatment for fear of being poisoned. In fact, there are suspicions in some quarters that he was poisoned. This, to me, is arrant nonsense, and it goes to show how much we have lost trust in ourselves and lost faith in our abilities. We must therefore begin the much-talked about restructuring of the country from our mind. This is as I see it.

1 Response

I appreciate your thoughts on this matter and really like the way you explained all the scenarios. I only wish that Nigerians are learned enough to understand the intricasies of government instead of listening and following people like ffk and fayose the tout who just play to the gallery. Also I like to add that the Apc govt is failing in the area of health care. the 2 years they have been in power is enough to upgrade the national hospital to international standards that can cater for the kinds of the presidents ailment…. 2 years is enough to have resumed Nigeria Airways (even with only 4 planes which Nigeria can procure) 2 years is enough to have reorganised the generation and distribution of power to a certain extent ………..even as a die hard Buharist i think these are glaring areas where the govt is failing…….my thuts